Norwood v. Rossiter

Norwood v. Rossiter. X. A promise in writing, by N and A to R, to discharge, pay, and satisfy certain debts due by R and A, as partners, is not within the act of 1818, autho riz-ing a discontinuance, when the writ is not executed upon all the defendants and therefore, a discontinuance in such case, as to one, is a discntinuance of the action. Error to the Circuit Court of Wilcox. THIS action was commenced in the Court below, by attachment, by the defendant in error, against the plaintiff in error, and one Edwin Allen, on an instrument of writing not under, seal; by which the latter' agreed to discharge, pay and satisfy, certain debts due by the defendant in error, and the said Allen, under the firm of Rossiter & Allen. The attachment was levied on the property of the plaintiff in error alone, but the declaration is against both the plaintiff in error and Alien. A discontinuance was afterwards entered as to Allen. The plaintiff below had judgment, from which this writ of error is prosecuted by the defendant, who among other things, now assigns for error, the discontinuance of the suit. Edwards, for plaintiff in error; [MAJORITY — ORMOND, J.] ORMOND, J. The instrument sued on in this ease, is not embraced in the statute of 1818, (Aikin’s Digest, 267,) by its terms, as it is neithera “bond, bill, covenant or promissory note.” If the question was open in this- Court, we should be inclined to think this case within the equity and meaning of the statute, though without the letter; but we feel ourselves precluded from putting, that construction on it, by the decision of this Court, in Thompson v. Saffold, (2 Stewart, 494,) and Tindall v. Collins, (2 Porter, 17,) which cannot be distinguished from this case. As by the common, law, the discontinuance of a a co-defendant who was a proper party, was a discontinuance of the entire action; and as this case is not provided for by the statute author-ising discontinuances in certain eases, the judgment must be. reversed..